Nessel disappointed with ‘radio silence’ from Biden admin. on Line 5

AG hoping for expedited reversal of Enbridge’s federal removal efforts

By: - December 21, 2021 5:17 am

President Joe Biden delivers remarks on his American Jobs Plan and the Ford F-150 Lightning electric pickup truck at the Ford Motor Co. Rouge Electric Vehicle Center in Dearborn, where the truck will be produced, on Tuesday, May 18. (Andrew Roth | Michigan Advance)

Attorney General Dana Nessel said Monday she’s heard more from Canadian Prime Minister Justin Trudeau’s cabinet on inter-governmental Line 5 talks than she has from U.S. President Joe Biden’s administration.

“I’m not personally aware of what those talks have yielded, if anything,” she said at a media roundtable in regards to discussions under the 1977 Treaty between the two countries that relates to transit pipelines.

Since June, Canada has repeatedly pointed to the treaty as a reason to pause proceedings while federal Judge Janet Neff deliberated where Gov. Gretchen Whitmer’s Line 5 shutdown lawsuit belonged.

Attorney General Dana Nessel, Dec. 20, 2021 | Laina G. Stebbins

Those efforts did not succeed in pausing the case, but Neff did cite the treaty talks in her Nov. 16 decision to remove the case to federal court, at the request of Enbridge, the Canadian company that owns the pipeline.

Whitmer then dropped that lawsuit, choosing to focus instead on Nessel’s 2019 state lawsuit that also seeks a Line 5 shutdown — but Enbridge moved last week for that case to be removed to federal court, too.

“I see over and over again where the Trudeau administration says that they’re engaging in talks, but then I don’t hear anything really back from the Biden administration about those talks or about the substance of those talks,” Nessel said.

Until she is told differently, she said, Nessel still believes Line 5 to be an issue that falls within state jurisdiction.

Biden has still not taken any position on the pipeline, although many of his Democratic opponents during the 2020 presidential race speaking out against Line 5 and Enbridge. The White House also is reportedly not studying the impacts of Line 5 as it currently exists.

When asked Monday whether Nessel is disappointed that Biden’s administration hasn’t been more communicative on Line 5 treaty talks, particularly since Nessel and Whitmer have been strong Biden supporters, the Democratic AG paused for a moment.

“Yes, I am disappointed. I’d like to hear more from them,” Nessel said.

A spokesperson for the White House did not immediately return a request for comment.

Since Michigan v Enbridge is no more, Enbridge now hopes to try its luck again with a gambit to also remove Nessel v Enbridge to federal court. Neff will also oversee this jurisdictional matter.

But generally, defendants have just 30 days from the time a case is served to remove it to federal court.

“Instead of abiding by the 30-day rule, it was 887 days between July 12, 2019 and December 15, [2021],” Nessel said Monday, calling the move “illegal” and “total gamesmanship on the part of Enbridge.”

There are certain instances in which a case can become removable later, however. In an email Monday, Enbridge spokesperson Ryan Duffy said the case falls under one of those circumstances.

“Under federal law a defendant such as Enbridge can remove a case to federal court within 30 days from when it receives ‘solid and unambiguous information’ that the case is removable. The November 16 ruling provided the solid information relied on here, and the case has now been removed for further proceedings before the federal district court,” Duffy said.

“We are hopeful that the Attorney General will agree that it makes sense for her case and the Enbridge case to be decided by the federal court rather than risk duplicative litigation and inconsistent results.”

There have not yet been court filings or arguments in the newly removed version of Nessel v Enbridge, which is now case no. 1:20-cv-1057.

It's an incredibly disturbing situation. I continue to think that every day that goes by where we don't have a catastrophe is a day that we're very lucky.

– Attorney General Dana Nessel

Nessel said Monday, as she has previously told the Advance, that Enbridge is trying to run out the clock on her tenure by doing “everything and anything they can to extend the time in which Line 5 is operating.

“Because every day that Line 5 continues to operate is a day they’re making between $1 million to $2 million. And so they will throw as much money at maintaining operation of that line as they can,” she said.

Nessel also noted that she believes Michigan taxpayers would be left with the bill in the event of a Line 5 oil spill in the Great Lakes.

“It’s an incredibly disturbing situation,” she said. “I continue to think that every day that goes by where we don’t have a catastrophe is a day that we’re very lucky.”

If Nessel’s lawsuit to decommission the twin pipelines ultimately goes in favor of Enbridge or is dismissed by a Republican successor, one possible option still on the table would be for Enbridge’s federal regulator, the Pipeline and Hazardous Materials Safety Administration (PHMSA), to assess Line 5 as unsafe and shut down the pipeline.

That federal agency is the one Enbridge argues has the sole legal right to decommission the pipeline. The agency has so far been quick to greenlight the company’s requests, but both the agency and the U.S. Department of Transportation (USDOT) that houses it have undergone some left-leaning administrative changes since then.

Mackinac Bridge | Susan J. Demas

In any case, USDOT formally adopted and implemented a new provision on Thursday to tighten up PHMSA safety rules for pipelines located in particularly sensitive areas — like Line 5, which transports oil under the environmentally delicate and culturally significant Straits of Mackinac.

Citing Enbridge’s catastrophic 2010 Line 6B oil spill in Marshall, the new PHMSA ruleauthored by U.S. Sen. Gary Peters (D-Bloomfield Twp.) defines the Great Lakes as an “unusually sensitive area” (USA) and requires pipelines located there to have stronger integrity management programs that include inspections, repair and emergency response plan requirements. 

But Enbridge claims it will not affect Line 5, as the company’s program for the pipeline “already meets those requirements.” Another spokesperson said Enbridge anticipated PHMSA’s action and made the necessary upgrades before the rule was implemented.

Duffy did not answer a question about which requirements the company’s program already meets.

On Monday, Nessel said stronger federal rules are a plus, but do not put her mind at ease about the danger of Line 5 to the Great Lakes.

“We welcome this strengthened regulation of pipeline operational standards in the Great Lakes. But it does not and cannot eliminate the continuing threat posed by the location of the existing Line 5 pipelines on Great Lakes bottomlands in violation of the public trust,” Nessel said. “The presence of the pipelines there remains unlawful and we will continue to seek their shutdown as soon as possible.”

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).

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